Moeke v Raukawa Iwi Development Limited - [2023] NZHC 7

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-46

[2023] NZHC 7

BETWEEN
FORD BENJAMIN MOEKE

Plaintiff

AND

RAUKAWA IWI DEVELOPMENT LIMITED

First Defendant

SOUTH WAIKATO DISTRICT COUNCIL

Second Defendant

Hearing: On the papers

Appearances:

Ken J Patterson for the Plaintiff

Richard B Fowler KC/Hamish Douch for the First Defendant Kate Cornege/Megan Crockett for the Second Defendant

James Gurnick/David Nielsen for the Fourth and Fifth Defendants

Judgment:

1 February 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[application for joinder]

This judgment was delivered by me on 1 February 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Ken J Patterson, Tauranga, for the Plaintiff
Mortlock McCormack Law (Hamish Douch), Christchurch, for the First Defendant Tompkins Wake (Kate Cornegé / Megan Crockett) Hamilton, for the Second Defendant Nielsen Law (David Nielsen), Hamilton, for the (Proposed) Fourth and Fifth Defendants

Counsel:
Richard B Fowler KC, Wellington, for the First Defendant

FORD BENJAMIN MOEKE v RAUKAWA IWI DEVELOPMENT LIMITED [2023] NZHC 7 [1 February 2023]

[1] The plaintiff in this proceeding, Ford Benjamin Moeke (Mr Moeke), made an application for joinder dated 13 April 2022, seeking to join the following parties as defendants:

(a)the directors of the first defendant, Raukawa Iwi Development Limited (Raukawa), as third defendants;

(b)the Mayor and a number of other councillors of the second defendant, the South Waikato District Council (the Council), as fourth defendants;

(c)Mr Smit, the former Chief Executive of the Council, as the fifth defendant;

(d)Mr Hamish Douch, the solicitor for Raukawa, as the sixth defendant;

(e)Mr Mike Bracken, the solicitor for the Council, as the seventh defendant.

[2] At the time of filing the joinder application, the plaintiff also indicated that he proposes to file a second amended statement of claim which seeks the following relief:

(a)against all the defendants, jointly and severally, general damages in the sum of $1,000,000;

(b)against all the defendants, jointly and severally, special damages of
$3,500;

(c)against each of the first and third defendants severally, exemplary damages of $15,000;

(d)against each of the second, fourth and fifth defendants severally, exemplary damages of $25,000;

(e)against each of the sixth and seventh defendants severally, exemplary damages of $50,000.

[3] Raukawa filed a notice of opposition dated 9 May 2022, the Council filed a notice of opposition dated 5 May 2022, some but not all of the proposed fourth defendants filed a notice of opposition dated 13 June 2022, and the proposed fifth defendant filed a notice of opposition dated 13 June 2022. No notices of opposition were filed by the proposed third defendants, some of the proposed fourth defendants nor the proposed fifth, sixth and seventh defendants.

[4] The plaintiff filed an amended application for joinder dated 6 July 2022. The amended application removed one of the directors of Raukawa proposed as the third defendants, and amended the councillors proposed as fourth defendants.

Background to the proceedings

[5] Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 7
Decision Date: 1 February 2023

CaseChat Overview and Summary

Ford Benjamin Moeke, the plaintiff, sought to join several additional defendants to the existing proceeding against Raukawa Iwi Development Limited and the South Waikato District Council. The additional defendants proposed were the directors of Raukawa, councillors and the Mayor of the South Waikato District Council, the former Chief Executive of the Council, and the solicitors for Raukawa and the Council. The plaintiff also proposed a second amended statement of claim seeking damages against all defendants. Raukawa, the Council, some of the proposed fourth defendants, and the proposed fifth defendant filed notices of opposition. The court had to determine whether the threshold objective test for the Court’s jurisdiction to order joinder under either subparagraph (i) or (ii) of r 4.56(1)(b) of the High Court Rules 2016 had been met, and if so, whether the Court should exercise its discretion to order joinder.

The Court found that only subparagraph (i) of r 4.56(1)(b) was relevant as the issues as to liability had already been adjudicated on and determined in relation to these proceedings. The Court found that the Judgment did not consider the liabilities of the individual officers, trustees or elected members of the Council in tort, nor the liability of solicitors in the conspiracy. The Court found that there was no clear basis on which the proposed additional defendants “ought” to be joined until their individual liability had been established. Consequently, the jurisdictional test in r 4.56(1)(b) had not been met and the application should be dismissed.

Even if the jurisdictional threshold for the Court to order joinder was met, the Court should not exercise its discretion to order joinder in this case. The joinder of the proposed additional defendants had the potential to cause significant disruption to the litigation and increase the time to bring it to a close. The delay in bringing the joinder application also counted against the plaintiff’s application. The proposed additional defendants were largely, if not completely, identifiable at a much earlier stage. Any application for joinder was too late and the Judgment had already been delivered.

The Court dismissed the plaintiff’s application for joinder of the proposed third defendants, fourth defendants, fifth defendant, sixth defendant and seventh defendant. As Raukawa and the Council had been successful parties, costs should follow the event and costs and disbursements were awarded to Raukawa and the Council against the plaintiff on a 2B basis.

Orders